DISPOSITION: Affirmed (in favor of Wells).


JUDGES: Authored by Laura Powell and Lewis Silver with whom Chief Justice Jim Hanson joins



MATTHEW DUBAY, Appellant, v. LAUREN WELLS, Respondent



October 25, 2009, Filed


PRIOR HISTORY: Appeal from the United States Court of Appeals for the Sixth Circuit No: 06-2107.  Date filed: November 6, 2007.


COUNSEL: For Appellant: Kirsten Larson, Walla Walla, WA. 

For Respondent: Emily Percival, Walla Walla, WA.











Matthew Dubay and Lauren Wells became romantically involved in the fall of 2004.  At the beginning of their relationship, Dubay informed Wells that he did not want to father a child.  In response, Wells told Dubay that she was infertile, but was using contraception as an additional protection.  After the relationship ended, Wells became pregnant with Dubay’s alleged child.  Dubay consistently stated that he had no desire to be a father. When the County brought a paternity complaint against Dubay, he contested that the application of the Michigan Paternity Act to his case was a violation of the 14th Amendment’s Equal Protection Clause.



A.    Dubay’s procreative rights were not infringed upon by the State


The appellant argues that the right to privacy within the United States Constitution encompasses the right to make decisions regarding conception, child bearing, and child rearing.  Specifically, the appellant argues that the Michigan Paternity Act infringes upon his right to decide when to accept the responsibilities of parenthood and that this right is guaranteed under the Constitution. 

Dubay is correct in his assertion that the Constitution does protect an individual’s right to make decisions about child bearing.  In Eisenstadt v. Baird 405 U.S. 438 (1972), the Supreme Court held that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (Eisenstadt v. Baird 405 U.S. 438).  Additionally, the Court has held for many decades prior to Einsenstadt v. Baird that the government shall not interfere with decisions regarding “the sanctity of a man’s home and privacies of life” (Boyd v. United States 116 U.S. 616 (1888)).  Personal decisions pertaining to procreation (Skinner v. Oklahoma, ex rel. Williamson 316 U.S. 535) marriage (Loving v. Virginia, 388 U.S. 1, 12) contraception (Eisenstadt v. Baird 405 U.S. 438), and abortion (Roe v. Wade 410 U.S. 113) have all been protected from government intrusion under the constitutional right to privacy.

While Dubay is correct that the Constitution protects the right to bear and beget a child, his assertions that the Michigan Paternity Act infringes upon his right to deny fatherhood is a flawed interpretation of the constitutional protection.  The provisions set forth by the Act are specifically designed to apply after a child is born; the Act has no immediate bearing on individual decisions prior to the birth of a child.  As the Act states in Section 712, “The parents of a child born out of wedlock are liable for the necessary support and education of the child” (Michigan Paternity Act 1956).  The State can only bring a paternity complaint against a father in the event that a child is actually born.  At no time before the birth of Wells’ child did the government interfere with Dubay’s decision to have sexual intercourse with Wells.  As the respondent explains, “Dubay engaged in consensual sex without the interference of the State” (Percival, Dubay v. Wells Brief, 3).  Ultimately, the Michigan Paternity Act is designed to protect the welfare of the child that is born out of wedlock and it did not interfere with Dubay’s intimate relationships. 


B.    The government is entitled to protect the welfare of a child even if in conflict with the constitutional rights of the parent


Although Dubay did not want to become a father, the government has the right to enforce financial obligations upon him for refusing to accept responsibility for his biological child.  In N.E. v. Hedges 391 F.3d 832 (2004), the Sixth Circuit court held:

Plaintiff has identified no action taken by a state actor that impacted in any way his choice to father a child… The paternity requirement emanates primarily from the state's power to intervene under the parens patriae doctrine, a doctrine that enforces the duties of biological parents, not their constitutional rights…For reasons of child welfare and social utility, if not for moral reasons, the biological relationship between a father and his offspring - even if unwanted and unacknowledged - remains constitutionally sufficient to support paternity tests and child support requirements (N.E. v. Hedges 391 F.3d 832).


As clearly demonstrated in the legal decision rendered in N.E. v. Hedges, biological fathers cannot avoid financial responsibility simply because of an unwanted outcome of sexual intercourse.  Similar to the Plaintiff in N.E. v. Hedges, the State never required Dubay to engage in sexual activity that resulted in a child, nor did the State interfere with Dubay’s choice of contraceptive methods.  On the contrary, Dubay engaged in sexual intercourse with Wells free from government intrusion, knowing full well that conception is a potential consequence.  In Child Support Enforcement Agency v. Doe 125, P.3d 461, 469 (2005), the Supreme Court of Hawaii held that “the father elected a course of conduct inconsistent with the exercise of his right not to beget a child. The reproductive consequences of his actions were imposed by the operation of nature, not statute” (Child Support Enforcement Agency v. Doe 125, P.3d 461, 469).  The conception of a child has always been a possible consequence of sexual intercourse and Dubay took that risk by engaging in intercourse with Wells.

         Once a child is born, the government has an obligation to preserve the welfare of the child in question.  As the respondent explains, “When constitutional rights of parents conflict with their duties, ‘the State is entitled to adjust its legal system to account for children’s vulnerability’ (Bellotti v. Baird 443 U.S. 622, 635). The Michigan Paternity Act is one such adjustment” (Percival, Dubay v. Wells Brief, 3).  Thus, Dubay’s claim that it is unconstitutional to require him to pay child support because contraceptive methods failed is unfounded.  Dubay’s right to procreational autonomy does not include a right to not support a resulting child financially (Child Support Enforcement Agency v. Doe, 125, P.3d 461, 469).  In other words, the Court places high importance on the child’s rights to health and safety (Rivera v. Minnich, 438 U.S. 574).  Denying the State the ability to enforce parental financial obligations to their offspring would give both men and women carte blanch approval to disregard their offspring whenever they felt that they did not wish to bear the responsibilities of such children. 

         In this case and in others like it, the abdication of a father’s financial responsibility to his child places an unfair and undue burden upon the mother.  Citing a 2005 study from the Guttmacher Institute, the respondent writes that 73% of 1,209 women who had an abortion in 2004 chose to do so because “they could not afford a baby” (Percival, Dubay v. Wells Brief, 6).  A father’s negation of financial responsibility increases a mother’s financial burden and can subsequently influence her to have an abortion.  Such financial pressure greatly undermines a woman’s choice over her body. As such, her constitutionally protected rights over child bearing typically conceptualized as rights to bodily integrity (Percival, Dubay v. Wells Brief, 6) are seriously harmed.  Women should not be influenced to have an abortion by the absence of financial support from the father.  As with a child, a father’s procreative rights should not infringe upon a woman’s right to health and welfare. 


C.    Dubay’s procreative rights – as understood through the Equal Protection Clause – were not improperly infringed upon.


                                                    i.     The Fourteenth Amendment allows different treatment of different classes of persons under specific circumstances.


            To presume that the rights protected by the Equal Protection Clause equate to a right to being treated the same as others in all situations is a gross misreading of our decisions. The Fourteenth Amendment allows the State to treat people differently when they are situated differently. In Eisenstadt v. Baird, 405 U.S. 438, (1972), the Court held that “the Fourteenth Amendment does not deny to [the] State the power to treat different classes of persons in different ways” Eisenstadt, at 447. In other words, the State has grounds to treat groups differently if it could classify them as different types of persons. This reading was reaffirmed in City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, (1985) when the Court held that equal protection was “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, at 439.

            Appellant attempts to sidestep this precedent by claiming that legitimate classifications must be grounded in a difference substantially related to the object of the legislation. Here, Dubay cites the Court in Royster Guano Co. v. Virginia, 253 U.S. 412, (1920) which held that a classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation” Royster Guano Co. at 415. Appellant’s argument here is that although there are substantial differences between men and women, they are not substantially related to the object of the legislation, which he argues is parenting in general. Using this precedent as a grounding for appeal however, is problematic for Appellant in at least two ways. First, the phrase immediately following the cited quotation reads, “so that all persons similarly circumstanced shall be treated alike” Royster Guano Co. 415. Thus, even in the case Appellant asks the Court to prefer, an affirmative burden of equal treatment is only established in cases of similar circumstance. A second and much larger problem, however, is the fact that Appellant’s argument depends on a flawed interpretation of what the “object of the legislation,” in this case the Michigan Paternity Act, actually is. To presume that the act’s object is merely parenting post-birth begs the question of whether men and women are similarly situated. Thus, the critical standard for when dissimilar treatment of persons is legitimate should always be whether they are similarly-situated with respect to the legislation at issue.

            Dubay’s claim that his right to Equal Protection was infringed upon by the Michigan Paternity Act rests on two claims: 1) that the act does, in fact, treat women differently than men, and 2) that men and women are similarly-situated with respect to all aspects of parenting affected by the act. The Court accepts the first claim but rejects the second, and thus, concludes that Dubay’s Fourteenth Amendment Equal Protection Clause claim lacks grounding.

                                                  ii.     Men and women are not similarly-situated with respect to bearing and birthing a child.


Although Dubay is right to point out the ways in which a mother and father are similarly-situated with respect to raising and caring for a child, he fails to account for the fundamental differences between the situations of the mother and father during the period between conception and birth. Respondent rightfully points this out, arguing that:

“The extension of reproductive rights to women after conception (abortion) is a result not of unfair and unequal access to reproductive decision-making, but of the process of childbearing that is unique to women. Because women bear children and men do not, the female overwhelmingly bears the physical person during pregnancy.” (Percival, Dubay v. Wells Brief, 4.)

Women’s post-conception reproductive rights mean that Dubay’s claims have little merit. To the degree that a father does possess a general reproductive right by virtue of his being similarly-situated with respect to parenting, the mother would obviously share that right as well. Given this equal parental right, the mother’s exclusive right to bodily integrity should, at the very least, serve as a “tie-breaker” when interests conflict. As such, we conclude that Dubay and Wells were not similarly-situated with respect to certain aspects of parenting, and thus there were grounds for dissimilar treatment with respect to the Michigan Paternity Act’s enforcement.


D.    The Michigan Paternity Act satisfies the requirements of the Equal Protection Clause under the Fourteenth Amendment.


                                                    i.     The Michigan Law should be evaluated based on intermediate scrutiny


Dubay’s claim rests on the argument that the Michigan Paternity Act fails strict scrutiny and is thus unconstitutional. Strict scrutiny, however, does not apply to this case. In Goetz v. Glickman, 149 F.3d 1131, (10th Cir.1998), the Court held that Governmental classifications are only subject to strict scrutiny under the Equal Protection Clause if they target a suspect class or involve a fundamental right. Gender is not a suspect class; it is a quasi suspect class and this has been repeatedly emphasized in court rulings.  “Gender and illegitimacy have merited a quasi-suspect class status” (Chuck Stewart, Homosexuality and the Law: A Dictionary, p. 185). Further, there is no fundamental right to reject parenting after conception. There is only a parenting right in the sense of a parental connection with a child; not a right to reject parenting a biological offspring. (“Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children.” Matter of Delaney, 617 P 2d 886, Oklahoma (1980).) And, again, there is no burden on Dubay’s fundamental right to procreative activity (nor to his intimate relationships). So, this legislation which does not target a suspect class nor burden a fundamental right is not subject to strict scrutiny.

In this case, the arguments based on gender make the correct standard relatively clear. As Cornell University’s Law Encyclopedia explains, “Intermediate scrutiny is used in equal protection challenges to gender classifications” (Cornell University Law School, http://topics.law.cornell.edu/wex/intermediate_scrutiny ). While Intermediate Scrutiny is not required for all laws based on gender classifications, it is relevant to this case. The law does not infringe upon a fundamental right (no fundamental right is involved as noted previously) and the law does not burden the rights of a suspect group (gender is a quasi-suspect group and gender is the “suspect classification” asserted by the Appellant). As such, it seems clear that the Michigan Paternity Act should be evaluated based on intermediate scrutiny and this requires examining whether the law “achieves important governmental interests that are furthered by substantial means.” (http://en.wikipedia.org/wiki/Intermediate_scrutiny; see Craig v Borden, 429 US 190, 1976).

                                                  ii.     The fundamental right to procreative control doesn’t extend indefinitely and it is not improperly restricted by the Michigan Paternity Act – Thus this case doesn’t necessitate Strict Scrutiny.


Although fathers possess a limited fundamental right to make the decision whether or not to be a parent in certain circumstances, that right is hardly unproscribable, and should not be interpreted as applying after conception. In the case at issue, Dubay’s claim to a fundamental right to reject procreation and any attendant responsibilities ended after he engaged in the procreative act creating the child in question. The Court’s traditional interpretation of a “fundamental right” supports this. In general, the Court has ruled that a “fundamental rights claim” protects an individual from some detriment to either the bill of rights or the Equal Protection Clause of the Fourteenth Amendment. In the case at issue then, the litmus test for whether a fundamental right has been infringed upon should be whether the Michigan Paternity Act included some detriment to either the bill of rights or the Equal Protection Clause. The act clearly passes this test, as it had no bearing on Dubay’s individual decisions prior to the birth of the child, and it never affected his decision to engage in behavior that led to conception.

Even if the Court extends the fundamental right of procreative control to include action post-conception, Dubay would remain on unsustainable ground. The mother’s right to bodily privacy and integrity forms a countervailing right that is similarly fundamental. Given that the mother and father would both equally possess any procreative rights, the mother’s countervailing rights of bodily privacy clearly form a sort of “tie-breaker” in favor of the mother. Even this comparison, however, cedes too much to the father. In the situation where fundamental rights must be weighed against one another, the father’s right to determine paternity is sufficiently outweighed by the mother’s right to bodily integrity alone. Either way, Dubay’s claim to a violation of a fundamental right are not warranted.

                                                iii.     The Michigan Paternity Act passes intermediate scrutiny because the government has a substantial interest in protecting the child.


Viewed through the lens of intermediate scrutiny, things become much clearer. In order to meet the requirements of intermediate scrutiny, “the challenged law must further an important government interest by means that are substantially related to that interest.” (Cornell University Law School, http://topics.law.cornell.edu/wex/intermediate_scrutiny). In the case at issue then, the Court holds an obvious interest in protecting the health and well-being of the child. In Rivera v. Minnich, 438 U.S., the Court refused to recognize any reproductive rights when those rights were weighed in comparison with the child’s rights to health and safety (Rivera at 574). The Michigan Paternity Act clearly furthers important government interests and does so by means directly related to that interest. Requiring the plaintiff to pay child support directly helps the health and well-being of the child. Thus, the Michigan Paternity Act does not violate the Equal Protection Clause of the Fourteenth Amendment.

III. Conclusion


         Ultimately, Dubay’s claim that the Michigan Paternity Act infringes upon his right to bear and beget children – and subsequently his right to privacy – is an unfounded and a flawed interpretation of the Constitution.  Dubay decided to engage in sexual intercourse with Wells and to not provide his own personal contraception free from State interference and influence.  The State only enforced Dubay’s financial obligations to his child after Wells gave birth in efforts to protect the welfare of their child. 

         The federal government has a compelling interest to preserve the health and safety of children born out of wedlock and this includes enforcing financial obligations of both parents involved.  In this respect, the Michigan Paternity Act does not infringe upon Dubay’s right to bear and beget children.  Furthermore, Dubay’s abdication of financial responsibility for his child places an undue burden on both the rights of his child and the respondent.  Dubay’s reproductive rights do not include the right to not support his child and infringe upon a woman’s bodily integrity.  This Court agrees with the respondent’s argument that “Dubay exercised his unilateral right to choose or deny parenthood the night of the child’s conception…Dubay chose to have sex, and in that decision Dubay forfeited any claim to deny financial responsibilities” (Percival, Dubay v. Wells Brief, 7).  Dubay’s Fourteenth Amendment claims face the similar problem of being improperly grounded.  Though enforcement of the Michigan Paternity Act may have resulted in dissimilar treatment of Dubay and Wells, their status as differently-situated parties to the process of bearing and birthing a child renders this discrepancy legitimate.  Further, any fundamental right that Dubay had to procreative control was not improperly infringed upon by the Michigan Paternity Act, because restrictions were enforced exclusively in situations where Dubay’s right would impinge upon Wells’ greater right to bodily integrity.